Washington Post Runs Bizarrely Ignorant Opinion Piece Claiming Florida's Content Moderation Law Is Constitutional

from the do-you-do-any-fact-checking dept

Look, I get that the Opinion sections of major newspapers want to run a variety of opinions, and thus might do less fact checking than the news parts of the paper, but it still seems just bizarre that they let any ignorant fool post absolute nonsense with no attempt at providing facts or the reasons why the underlying assumptions the opinion piece is based on are just wrong. Henry Olsen is apparently a "conservative" columnist for the Post while also being involved in some think tank that has been whining about big tech and, bizarrely, apparently suggesting that God believes Republicans should stop Twitter from having rights or something. Anyway, Olsen's column claims that critics of Florida's social media bill "are wrong" and that's it's perfectly legit for a state government to tell a company how to handle speech on their websites.

As you'll recall, Florida just signed its bad bill into law, and it's already being challenged in court, where the law is almost certain to be thrown out as unconstitutional.

Olsen, though, is sure that the bill is perfectly fine and there are no constitutional problems with it at all. After reading the headline, I expected to see some legal citations or actual, you know, factual arguments. But... that's apparently not what the Washington Post gets out of Olsen. First, Olsen insists that even though the facts don't support the idea that there's anti-conservative bias in how social media is moderated, he can cherry pick two examples -- Donald Trump and James O'Keefe -- as proof that it must be true and that something needs to be done:

The Florida law is a response to conservatives’ belief that social media companies unfairly target their limitations on speech. One can dispute how much that is actually true, but high-profile acts such as many companies’ continued ban on former president Donald Trump and the removal of Project Veritas’s James O’Keefe from Twitter provide more than enough proof to justify the reaction.

Except that doesn't deal with the reason why either one was banned. Trump was banned for using the platform to incite violence -- something that lots and lots of people (not just conservatives) have been banned for. O'Keefe was banned because Twitter claimed he was artifically amplifying his tweets. Again, lots of people have been banned for the same thing, including some of Trump's loudest critics. There is no evidence that there is bias in either of those moderation choices. Even more to the point, neither was banned for their "conservative" views. Both were banned for violating long-standing Twitter policies.

So, that's already a weak start to the article, but apparently that's the best Olsen can do. Because then he tries to dig into why there's no violation of the 1st Amendment here, and it seems to be... because Olsen doesn't think it's a big deal.

The question, then, is whether Florida’s requirements would help rather than hinder free expression of sensitive political issues, the core element the First Amendment seeks to protect.

Social media is an important, if not the most important, realm in which political debates are conducted today. As a result, access to social media is essential to any entity seeking to influence those debates. When a network denies someone access, it is significantly hampering the ability to successfully engage in political debate. That alone weighs heavily in favor of ensuring access is not unfairly or arbitrarily restricted or denied.

What? So, uh, the past two decades cable TV news has been one of the biggest influences on political debates and how they're conducted today, and I can't imagine Olsen would argue that the government should regulate that Fox News has to stop simping for Trump all the time, and would need to balance it out with some Biden love. Because that would be a very clear 1st Amendment problem.

Olsen then at least acknowledges West Virginia State Board of Education v. Barnette, which establishes clearly that the government cannot compel speech, but then says that forcing websites to host speech isn't really compelling speech. Again... this is based on... Olsen believing it's true. Not any actual legal argument or citation:

The question of compelled speech is also unconvincing. No reasonable viewer thinks that a TV station running an ad is endorsing the views it espouses. Similarly, a social media company that posts comments identified as coming from another party is clearly not making those statements itself. Allowing others to speak is not the same as forcing a company to endorse the speech.

What? That's not how any of this works. But all of this is based on Olsen just not understanding the regulations regarding broadcast TV and radio and assuming they magically apply elsewhere. This is the kind of thing you would think a newspaper like the Washington Post would have someone on hand to pull Olsen aside and explain to him that his very premise is mistaken. But, nope, Olsen knows that there are some regulations about political advertising on TV and radio, and assumes that it's easily applied elsewhere:

The federal government has long treated companies intrinsic to mass communication differently than other firms or individuals. Television and radio stations, for example, are required to run commercials from registered candidates for public office regardless of their content. They are also required to charge candidates lower ad rates than they charge commercial purchasers. Both requirements are justified as ways to ensure wide access to the entities that publicize ideas to a mass audience. The gain for political speech thus outweighs the burden placed on the communications companies.

But the reason for those regulations and what they apply to is kind of the key here. The FCC's regulations on this apply to broadcast stations. That is it applies to stations that have a license to use public spectrum. As such -- and only because they are using the public airwaves -- then the FCC can put these requirements on them. And, as the Supreme Court has made clear, these kinds of regulations are only constitutional because they're using public spectrum, via a license from the US government.

You can't just say -- as Olsen does -- that because there are regulations on broadcast TV and radio, that there's no problem with applying similar rules to totally private systems that don't rely on public spectrum. Somewhat hilariously, this is the identical ignorant argument that people on the opposite side of the political spectrum are making to try to apply the Fairness Doctrine to Fox News. It's unconstitutional in both cases.

And it's bizarre that no one at the Washington Post thought to suggest to Olsen that if he's going to point to regulations that are only constitutional because they're on public broadcast spectrum as his proof, he'll have to explain how the government can apply them to non-public spectrum, non-licensed networks, he might want to explain how that can actually work, when the Supreme Court has made it clear it does not. Though, amusingly, if his argument did work, it would also mean that the government could force Fox News to implement the Fairness Doctrine as well (perhaps using Olsen's own silly arguments) and I imagine he'd be pretty pissed off about that.

Anyway, Olsen's free to be wrong however he likes, but one would hope that the Washington Post wouldn't want to be in the business of publishing utter garbage, even if it is in the opinion section.

Filed Under: 1st amendment, content moderation, fcc, florida, henry olsen, public airwaves, regulations

Fact Check: Yes, Fact Checking Is Totally Protected By The 1st Amendment

from the i-mean,-holy-shit,-dude dept

The dumb takes on social media efforts to deal with problematic content keep getting dumber. Supposedly "conservative" commentator David Marcus has now written an opinion piece for Fox somehow arguing that fact checkers used on social media sites should be regulated. He's not the first to suggest this -- we just recently wrote about a Michigan legislator who was pushing an unconstitutional bill to regulate the fact checkers, but that this is the hill supposedly "conservatives" want to die on, seems particularly stupid.

Fact checking is protected by the 1st Amendment.

It is expressive. It is a core part of journalism as well, which is doubly protected under the "freedom of the press" part of the 1st Amendment. Marcus' article is so filled with dumb that it needs a fact check itself (as if Fox News ever did that sorta thing).

Nobody is checking the fact checkers, and it is time that changed. It’s time for government to regulate the fact checking industry.

Okay, let's start with Fox News. Should we have government regulators crack down on Fox News consistent fact check failures? Including publishing this nonsense article? Of course not. It's protected by the 1st Amendment as well.

This may seem antithetical to traditional conservative values of small government, but the ubiquitous and monopolistic nature of social media, the power it has to frame how we see the world, is an existential challenge. We cannot be slaves to orthodoxy if that means Americans are subject not only to lies, but also the censorship of the truth.

It's not just antithetical to the values of small government, it's antithetical to the 1st Amendment, which seems like a bigger problem. And, no, social media does not have "the power to frame how we see the world." After all, studies have shown repeatedly that Fox News's own lies have had a much bigger impact than social media in framing how people see the news. And, again, that's protected by the 1st Amendment.

The truly incredible part in this, of course, is that folks like Marcus seem to only want regulations when he believes the people he agrees with are treated unfairly. When it's others? He'd be the first one screaming about the Constitution. He's not principled, beyond "my team must win, and if not, I'll play victim."

Marcus' attempt to deal with the 1st Amendment issue is laughable to say the least:

The First Amendment rightly renders government powerless to regulate news outlets’ publishing content from their own in house fact checkers -- they are protected by freedom of the press. But third party independent fact checkers are another story entirely.

No, they're not another story altogether. Fact checking is expressive and it is a function of the press as well. You cannot regulate it.

These are entities such as Lead Stories, Politifact, and even the Associated Press that offer their fact checking expertise to social media platforms so the latter can claim they are not making editorial decisions. But that only works if third party fact checkers are operating objectively and without bias. It is quite obvious that this is not the case. 

Again, it's pretty fucking rich for someone on Fox News to be whining about "bias."

So what can be done about this dangerous situation? A new bill before the Michigan House of Representatives is a move in the right direction. The bill would require fact checkers to register with the government and carry insurance to cover payment to those who suffer financial damages as a result of a bogus fact check.

Laws like this can establish simple, uniform practices that fact checkers must abide by to provide fairness in the service they provide. 

No, laws like that are unconstitutional attacks on 1st Amendment protected activity.

 Regulating the fact checking industry would provide much needed accountability to the American people.

No, it's an effort to intimidate fact checkers who call out bullshit like yours, Marcus.

Facts are supposed to be stubborn. Either an article or post is factual or it isn’t.

Your article is not factual.

Regulating the fact checking industry would not be any kind of government censorship of the media; it would not deprive any publishing entity from running a fact check. It would merely ensure that companies which sell their fact checking services are applying objective standards when evaluating material. This is something they should be doing anyway, and is something that they are demonstrably not doing at present. 

I mean, come on. This one is too easy. Just turn it around: "Regulating cable news would not be any kind of government censorship of the media; it would not deprive any publishing entity of saying what it wanted. It would merely ensure that cable TV channels are applying "objective standards" in airing content. This is something they should be doing anyway, and is something they are demonstrably not doing at present."

Same damn thing.

The American people do not just have to sit back and take it as social media platforms, which provide huge swaths of them with their news, hire censors that lie about what constitutes a fact.  

No, they don't have to sit back. They can step up and speak out wherever else they'd like -- such as on Fox News, or on their own websites. What they can't do is get the government involved to intimidate fact checkers and threaten them with fines if they fact check "the wrong way."

Again, this is easy to demonstrate with just a few changes: "The American people do not just have to sit back and take it as Fox News, which provides huge swaths of them with their news, hires propagandists that lie about what constitutes a fact." And, again, American people don't have to sit back. They can ignore Fox News, they can watch other channels, they can speak out about Fox News's continued blatant propaganda and misinformation... or they can boycott their advertisers. There's lots they can do, and lots users of Facebook can do. What they cannot do under the Constitution, is pass a law regulating expressive activity like fact checking.

The people, through their elected officials absolutely have a right to ensure that this industry is providing a level playing field.

Again, let's apply that to Fox News as well to see how laughable a statement that is.

If one was to sell a service in which they weighed produce to set a price it would and should be illegal for them to secretly use different scales depending on the farmer or the type of produce.

Weighing this is not expression, genius.

Throughout the past year biased fact checking has done irreparable harm to the body politic. 

Throughout the past decade, biased Fox News has done irreparable harm to the body politic. How the hell do people like Marcus not recognize that every claim they're making applies equally back on them.

Regulating the fact checking industry would go a long way towards ensuring the American people are never misled in this manner again. 

Again, replace fact checking with "Fox News." And imagine how David Marcus would react if there were a serious legislative proposal to that effect.

Social media companies want to have it both ways. They insist that they are not publishers and therefore not liable for what appears on their supposedly neutral platforms. But they also insist that it is fine for them to suppress content because a third party fact checker, chosen by the social media company itself, says they should.

This is not what they insist. This is what a bunch of fake "conservative" idiots have pretended they insist in order to knock down a strawman.

There is nothing special about fact checkers that protects them from regulations requiring them to be fair and honest in their dealings.

They engage in expressive activity. Which makes them protected under the 1st Amendment, just like you and me.

This entire opinion piece is full of misleading, nonsense, and blatant factual errors. But, yeah, sure it's the "fact checkers" that need regulating.

Filed Under: 1st amendment, content moderation, david marcus, fact checking, free speech, journalism

First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed

from the and-we're-off dept

On Monday we noted that Florida Man Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.

Of course, it's one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).

The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.

The Act, a first-of-its-kind statute, was enacted on May 2, 2021 and signed into law on May 24, 2021 to restrict the First Amendment rights of a targeted selection of online businesses by having the State of Florida dictate how those businesses must exercise their editorial judgment over the content hosted on their privately owned websites. The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs’ members, by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies.

These unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material: pornography, terrorist incitement, false propaganda created and spread by hostile foreign governments, calls for genocide or race-based violence, disinformation regarding Covid-19 vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit goods and other violations of intellectual property rights, bullying and harassment, conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses. Meanwhile, the Act prohibits only these disfavored companies from deciding how to arrange or prioritize content—core editorial functions protected by the First Amendment—based on its relevance and interest to their users. And the Act goes so far as to bar those companies from adding their own commentary to certain content that they host on their privately owned services—even labeling such commentary as “censorship” and subjecting the services to liability simply for “post[ing] an addendum to any content or material posted by a user.”

Under the Act, these highly burdensome restrictions apply only to a select group of online businesses, leaving countless other entities that offer similar services wholly untouched by Florida law—including any otherwise-covered online service that happens to be owned by The Walt Disney Company (“Disney”) or other large entities that operate a “theme park.” This undisguised singling out of disfavored companies reflects the Act’s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights of “editorial discretion over speech and speakers on their property.” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).

Rather than preventing what it calls “censorship,” the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis’ own press release that touts the Act as a means to “tak[e] back the virtual public square” from “the leftist media and big corporations,” who supposedly “discriminate in favor of the dominant Silicon Valley ideology.”2 The Governor’s press release also leaves no doubt about the Legislature’s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that “our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, [this] … will not be tolerated.”

Although the Act uses scare terms such as “censoring,” “shadow banning,” and “deplatforming” to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies’ rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences. The legislative record leaves no doubt that the State of Florida lacks any legitimate interest—much less a compelling one—in its profound infringement of the targeted companies’ fundamental constitutional rights. To the contrary, the Act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the State’s disapproval of how the companies decide what content to display and make available through their services.

The Act is a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands. Could Florida require that the Miami Herald publish, or move to the front page, an op-ed or letter to the editor that the State favored, or demand that the Herald publish guest editorials in a state-sanctioned sequence? The answer is obviously no—as the Supreme Court unanimously held five decades ago in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks to repeat that history—and to go even further by, for example, compelling the targeted companies to alter and disclose their editorial standards and to provide “detailed” information about the algorithms they use to curate content.

There's more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.

The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn't realize that the bill creates a new "Antitrust Violator Vendor List" but then makes it so it only can apply to social media companies (that don't own a theme park).

Section 3 is another example of the Act’s irrational targeting of a select, disfavored group of online businesses. Although federal antitrust laws—and Florida’s counterpart statutes—apply across different industries, Section 3 irrationally singles out only the defined “social media platforms” for disfavored treatment because of their role in hosting and moderating online content. Id. Section 3 establishes an “Antitrust Violator Vendor List” of companies and individuals subject to an absolute contracting bar with the State of Florida. Id. (adding § 287.137(3)(b)). These persons and affiliates are also prohibited from receiving “economic incentives” such as “state grants, cash grants, tax exemptions, tax refunds, tax credits, state funds, and other state incentives” under Florida law...

The Antitrust Violator Vendor List may include those merely “accused of” violations by the Florida “Attorney General,” “a state attorney,” or federal authorities (subject to a cumbersome and inadequate process for contesting the Attorney General’s decision before a state administrative law judge). The Act empowers the Florida Attorney General to place an accused company “temporarily” on the Antitrust Violator Vendor List upon a finding of mere “probable cause that a person has likely violated the underlying antitrust laws.” Id. (adding § 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-defined group of officers, directors, shareholders, and even employees involved in “management” of a company placed on the List, as well as a broad group of “affiliates” of companies that are permanently placed on the List.

Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:

The Act is a smorgasbord of constitutional violations.

In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution's limitations as the federal government is). The 5th Amendment claims have to do with due process:

The Act violates due process because it fails to provide fair warning of what conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). A law is unconstitutionally vague when people “of common intelligence must necessarily guess at its meaning,” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926), or where the law lacks definite and explicit standards thereby encouraging “arbitrary and discriminatory” application, Kolender v. Lawson, 461 U.S. 352 (1983).

There's also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it's regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.

It's a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that's because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis' biggest fans will simply love the fact that he's wasting their money this way.

Filed Under: 1st amendment, 5th amendment, content moderation, due process, florida, ron desantis, section 230, standing
Companies: ccia, netchoice

Police In India Raid Twitter Offices After Twitter Labeled A Tweet By A Government Official As 'Manipulated Media'

from the intimidation-tactics dept

Remember the absolute shit fit that Donald Trump threw after Twitter placed warning labels on some of his tweets about mail-in ballots? That resulted in the ridiculous executive order to undermine Section 230, even though all Twitter had done at the time was add more speech to Trump's tweets and pointed out that they were presenting misleading information.

To some extent, however, we should be thankful that the power of the US President is at least somewhat limited, or we might have ended up with a situation like what happened in India this week. The story begins similarly to what happened with Twitter labeling some Trump tweets. In this case, there was something of a political spat in India, where the Indian National Congress (more or less the opposition political party, not a legislative body as the name might imply), complained to Twitter that the leading BJP party was spreading "forged documents" on Twitter. They asked Twitter to suspend the accounts of some BJP leaders who were supposedly spreading those documents.

The "forged documents" were basically misleading claims by the BJP that Congress was using a "toolkit" to undermine the Indian government's response to the raging pandemic.

After apparently reviewing this request to suspend those accounts, Twitter instead took what should be seen as a perfectly reasonable middle ground approach, and flagged the tweets of a BJP spokesperson noting that they were "manipulated media." The "manipulated media" flag is one of the first that Twitter started using in its attempt to flag misinformation and it has been used for well over a year now in a variety of contexts.

Now matter how you look at it, this is a "more speech" approach to dealing with potential misinformation. Twitter is adding its own speech to the tweets, noting that what they show appears to be manipulated. This hardly seems like a reason for law enforcement to get involved -- but get involved they did. Police first sent a notice to Twitter demanding an explanation over why it placed the "manipulated media" tag on that tweet, and then followed it up by raiding two separate Twitter offices in order to conduct a "search" for such information.

Of course, Twitter has all of its employees working from home these days (especially in India where there is still a massive COVID outbreak), so that wasn't particularly effective. But this is also against the backdrop of the Indian government just recently threatening to throw Twitter employees in jail if they didn't remove various criticisms of the Indian government, including over both protests and its handling of the pandemic.

This is all kind of terrifying when you look at it. It seems like a blatant intimidation technique from the ruling government trying to stifle not only criticism, but to suppress attempts to fact check some of its own disinformation.

Filed Under: bjp, content moderation, covid, flags, india, india national congress, intimidation, manipulated media, police
Companies: twitter